The American Commonwealth. Viscount James Bryce

the interests of the nation, such acts, in fact, as were often grounds for the English impeachments of the seventeenth century. As yet, Andrew Johnson is the only president who has been impeached. His headstrong conduct made his removal desirable, but as it was doubtful whether any single offence justified a conviction, several senators politically opposed to him voted for acquittal.¹⁷ A two-thirds majority not having been secured upon any one article (the numbers being thirty-five for conviction, nineteen for acquittal) he was declared acquitted, a result now generally approved.

      In case of the removal of a president by his impeachment, or of his death, resignation, or inability to discharge his duties, the vice-president steps into his place. The vice-president is chosen at the same time, by the same electors, and in the same manner as the president. His only functions are to preside in the Senate and to succeed the president. Failing both president and vice-president it was formerly provided by statute, not by the Constitution, that the presiding officer for the time being of the Senate should succeed to the presidency, and, failing him, the Speaker of the House of Representatives. To this plan there was the obvious objection that it might throw power into the hands of the party opposed to that to which the lately deceased president belonged; and it has therefore been now (by an act of 1886) enacted that on the death of a president (including a vice-president who has succeeded to the presidency) the secretary of state shall succeed, and after him other officers of the administration, in the order of their rank. Five presidents (Harrison, Taylor, Lincoln, Garfield, McKinley) have died in office, the three latter killed by assassins, and been succeeded by vice-presidents, and in the first and third of these instances the succeeding vice-president has reversed the policy of his predecessor, and become involved in a quarrel with the party which elected him, such as has never yet broken out between a man elected to be president and his party. In practice very little pains are bestowed on the election of a vice-president. The convention which selects the party candidates usually gives the nomination to this post to a man in the second rank, sometimes as a consolation to a disappointed candidate for the presidential nomination, sometimes to a friend of such a disappointed candidate in order to “placate” his faction, sometimes to a person from whom large contributions to the campaign fund may be expected, sometimes as a compliment to an elderly leader who is personally popular, sometimes perhaps even to a man whom it is sought to shelve for the time being. If the party carries its candidate for president, it also as a matter of course carries its candidate for vice-president, and thus if the president happens to die, a man who may, like Tyler or Johnson, be of no great personal account, steps into the chief magistracy of the nation.

CHAPTER 6

       Presidential Powers and Duties

      The powers and duties of the president as head of the federal executive are the following:

      Command of federal army and navy and of militia of several states when called into service of the United States

      Power to make treaties, but with advice and consent of the Senate, i.e., consent of two-thirds of senators present;

      to appoint ambassadors and consuls, judges of Supreme Court, and all other higher federal officers, but with advice and consent of Senate;

      to grant reprieves and pardons for offences against the United States, except in cases of impeachment;

      to convene both houses on extraordinary occasions;

      to disagree with (i.e., to send back for reconsideration) any bill or resolution passed by Congress, but subject to the power of Congress to finally pass the same, after reconsideration, by a two-thirds majority in each house

      Duty to inform Congress of the state of the Union, and to recommend measures to Congress;

      to commission all the officers of the United States;

      to receive foreign ambassadors;

      to “take care that the laws be faithfully executed”

      These functions group themselves into four classes:

      Those which relate to foreign affairs

      Those which relate to domestic administration

      Those which concern legislation

      The power of appointment

      

      The conduct of foreign policy would have been a function of the utmost importance had not America, happy America, stood apart¹ down till 1898 in a world of her own, unassailable by European powers, easily superior to the other republics of her continent, but with no present motive for aggression upon them. The president, however, has rarely been allowed a free hand in foreign policy. He cannot declare war, for that belongs to Congress, though to be sure he may, as President Polk did in 1845–46, bring affairs to a point at which it is hard for Congress to refrain from the declaration. Treaties require the approval of two-thirds of the Senate; and in order to secure this, it is usually necessary for the executive to be in constant communication with the Foreign Affairs Committee of that body. The House of Representatives has no legal right to interfere, but it often passes resolutions enjoining or disapproving a particular line of policy; and sometimes invites the Senate to coincide in these expressions of opinion, which then become weightier. The president is nowise bound by such resolutions, and has more than once declared that he does not regard them. But as some treaties, especially commercial treaties, cannot be carried out except by the aid of statutes, and as no war can be entered on without votes of money, the House of Representatives can sometimes indirectly make good its claim to influence. Many delicate questions, some of them not yet decided, have arisen upon these points, which the Constitution has, perhaps unavoidably, left in half light. In all free countries it is most difficult to define the respective spheres of the legislature and executive in foreign affairs, for while publicity and parliamentary control are needed to protect the people, promptitude and secrecy are the conditions of diplomatic success. Practically, however, and for the purposes of ordinary business, the president is independent of the House, while the Senate, though it can prevent his settling anything, cannot keep him from unsetling everything. He, or possibly his secretary of state, if the president should not have leisure to give close or continuous attention to foreign policy, retains an unfettered initiative, by means of which he may embroil the country abroad or excite passion at home.

      The direct domestic authority of the president is in time of peace very small, because by far the larger part of law and administration belongs to the state governments, and because federal administration is regulated by statutes which leave little discretion to the executive. In war time, however, and especially in a civil war, it expands with portentous speed. Both as commander in chief of the army and navy, and as charged with the “faithful execution of the laws,” the president is likely to be led to assume all the powers which the emergency requires. How much he can legally do without the aid of statutes is disputed, for the acts of President Lincoln during the earlier part of the War of Secession, including his proclamation suspending the writ of habeas corpus, were subsequently legalized by Congress; but it is at least clear that Congress can make him, as it did make Lincoln, almost a dictator. And how much the war power may include appears in this, that by virtue of it and without any previous legislative sanction President Lincoln issued his emancipation proclamations of 1862 and 1863, declaring all slaves in the insurgent states to be thenceforth free, although these states were deemed to be in point of law still members of the Union.²

      It devolves on the executive as well as on Congress to give effect to the provisions of the Constitution whereby a republican form of government is guaranteed to every state; and a state may, on the application of its legislature, or executive (when the legislature cannot be convened), obtain protection against domestic violence. Where, as in Louisiana in 1873, there are two governments disputing by force the control of a state, or where an insurrection breaks out, as in Rhode Island in 1840–42, or where riots stop the movement of mail trains on a railroad, as happened in Illinois in 1894, this power becomes an important one, for it involves the employment of troops, and may enable the president (since it is usually on him that the duty falls) to